Last week, the HHS Office of Inspector General (OIG) issued an Early Alert, warning of the Centers for Medicare & Medicaid Services’s (CMS’s) “inadequate procedures” to ensure the identification and reporting of possible abuse in Skilled Nursing facilities (SNFs). The Alert notifies CMS that urgent action must be taken to protect vulnerable residents before the final report of the audit is issued.

For the report, the OIG investigated a sample of emergency room records for Medicare beneficiaries with codes that indicated elder abuse or neglect, primarily rape or other sexual or physical abuse. They also looked at State Survey Agency reports and the Medicare exclusion database and interviewed CMS officials.

The preliminary results are striking. Of the beneficiaries whose injuries may have been caused by abuse or neglect, a significant percentage (26%) may not have been reported to law enforcement by the hospitals, despite states’ mandatory reporting laws. Nursing homes have also failed to report to law enforcement. A provision of the Affordable Care Act, which amended section 1150B of the Social Security Act, required individuals in federally funded long-term care to immediately report suspected crimes against facility residents. The law requires that reports be made to a law enforcement agency with jurisdiction, in addition to the State Survey Agency.

Unfortunately, the OIG report finds that CMS is not doing enough to ensure cases of potential abuse or neglect get reported, or even discovered. Although section 1150B became effective March 23, 2011, CMS has not taken any enforcement action or, until recently, promulgated any regulations or guidance for surveyors. CMS told OIG that the Secretary of Health and Human Services had not delegated to CMS the authority to enforce section 1150B. The OIG recommends CMS take immediate steps to ensure the safety of residents, such as enforcing current law, implementing new regulations, imposing penalties and other appropriate actions.

Perhaps even more troubling, OIG reports that State Survey Agencies had substantiated only seven of the 134 incidents that the OIG reviewed. OIG is still in the process of determining whether the state agencies were aware of the 127 incidents. For decades, the federal Nursing Home Reform Law (1987) has required nursing facilities to investigate and report to State Survey Agencies all allegations of abuse and neglect. The OIG’s report suggests that such reporting may not be occurring regularly, even for some of the most extreme examples of abuse.

A lesser known elder justice issue that reflects abuse and must also receive more attention is the inappropriate administration of dangerous antipsychotic drugs to residents for whom they are not medically appropriate. Despite the clear, consistent, and ever-growing body of evidence that antipsychotic drugs should not be prescribed for older people, hundreds of thousands of nursing home residents are given these drugs on a regular basis. Inadequate staffing at nursing homes and the lack of both federal and state oversight and enforcement are two of the main reasons these drugs continue to be administered. The Center for Medicare Advocacy has long been an advocate for the rights of nursing home residents and urges CMS to take strong enforcement action against facilities that inappropriately administer antipsychotic drugs.

Medicare beneficiaries in nursing facilities deserve to live with dignity and in safety. Elder abuse devastates the lives of its victims and must be reported appropriately.

Read the full OIG preliminary report: OIG, Early Alert: The Centers for Medicare & Medicaid Services Has Inadequate Procedures To Ensure That Incidents of Potential Abuse or Neglect at Skilled Nursing Facilities Are Identified and Reported in Accordance With Applicable Requirements, page 1, A-01-17-00504 (Aug. 24, 2017), at https://oig.hhs.gov/oas/reports/region1/11700504.pdf

The Center for Medicare Advocacy is pleased to announce that Connecticut State Senator Ted Kennedy, Jr. (D-Branford) has joined our Advisory Board. A longtime health care lawyer and advocate for people with disabilities, Sen. Kennedy will work with the Center to promote access to healthcare for people in Connecticut and throughout the United States, particularly those with disabilities.

Sen. Kennedy also serves as Vice Chair of the Connecticut General Assembly’s Public Health Committee and as Chairman of the American Association of People with Disabilities. Upon joining the Center’s Advisory Board, Sen. Kennedy said, “we are at a critical juncture in Connecticut and throughout the United States. Access to care for people with disabilities and seniors is being threatened, and all the progress made in the last few decades is at risk of being rolled back. The Center for Medicare Advocacy is an incredible organization with a proven record of advocating for expansion of healthcare access, and their work is more important today than ever before. I am proud to have been given this opportunity to work more closely as we build a health system that works for all Americans.”

Center for Medicare Advocacy Executive Director Judith Stein expressed gratitude for the Senator’s time and interest. “The Center for Medicare Advocacy is honored and grateful that state Senator Kennedy has agreed to serve on our Advisory Board. His superb advocacy for people with disabilities will help shine a light on the unique needs of this younger population that looks to Medicare for coverage of necessary health care and rehabilitation.”

The Center welcomes Sen. Kennedy, and thanks him again for his continued efforts on behalf of all people in need.

Jimmo Corrective Action Plan Completed

CMS Adds Resources Regarding Medicare Coverage To Help People Who Need Skilled Maintenance Nursing or Therapy

As ordered by the federal judge in Jimmo v. Sebelius, the Centers for Medicare and Medicaid Services (CMS) published a new webpage containing important information about the Jimmo Settlement on its CMS.gov website. The Jimmo webpage is the final step in a court-ordered Corrective Action Plan, designed to reinforce the fact that Medicare does cover skilled nursing and skilled therapy services needed to maintain a patient’s function or to prevent or slow decline. Improvement or progress is not necessary as long as skilled care is required. The Jimmo standards apply to home health care, nursing home care, outpatient therapies, and, to a certain extent, for care in Inpatient Rehabilitation Facilities/Hospitals.